Address to the Ohio Electoral College

I have been asked to say a few things about the work that the Electors perform this day, a few words about the value of the Electoral College, this venerable institution. I am pleased to do so for two reasons:

First: We are witnesses here today to a high-minded Constitutional act that has taken place unbroken every four years from the beginning of the Republic, and today is the fiftieth meeting of the Ohio Electoral College. This day and the Electors’ solemn duty should remind us of why we Americans are a Constitutional people, and why the Electoral College is one of the linchpins of our Constitutional system.

Second: One of the consequences of this year’s election is that the value and purpose of the Electoral College has been brought into question. Although the Democratic candidate for president did not win the majority in the Electoral College, nor a majority of the states, he did win the plurality of the votes, as an aggregate, nationwide. Of course, as a constitutional matter, the national aggregate vote doesn’t matter. Getting the majority of the votes within the Electoral College matters. The person getting the majority of the Electoral votes, according to the Constitution, becomes the legitimate president of the United States of America.

Yet, some prominent public figures have already begun the process of both questioning the legitimacy of the upcoming Bush presidency and questioning the value of the Electoral College. There are now calls for a Constitutional amendment that would abolish the Electoral College. The proponents of this position will argue that a simple national majority, the aggregate of all the votes nationwide, should elect a president. And thus, they argue, such a president would represent the people’s will more directly, and therefore, be more legitimate. It seems to me that if the moral legitimacy of the Electoral College is in question, then that means that the moral legitimacy of the Constitution is in question. I am pleased to speak to you today as a partisan of the United States Constitution.

Renewing our understanding of the Electoral College’s purpose in our Constitutional architecture is indeed a pressing matter, and is necessary both to increase our knowledge of the purpose of the Constitution, and to prepare ourselves for the upcoming attacks on this linchpin of our Constitutional system. While the Electoral College, according Alexander Hamilton, may not be perfect, he tells us it is "excellent." We should be in agreement with him.

The proposed "innovation" of direct majority election of the president is not new, but was considered and rejected at the Constitutional Convention. There are some who argue that this rejection was based on protecting some interest; it most certainly was: the interest in instituting a limited, constitutional system of government that protects the fundamental rights of all its citizensnot just those in certain geographic areas or members of the majority. To understand how the Electoral College fits into this plan, it is necessary to begin at the beginning. Our forefathers established themselves as one people by declaring their independence from Britain. They appealed to the Laws of Nature and Nature’s God. They asserted the self-evident truth that all men were created equal and were entitled to their natural rights: life, liberty, and the pursuit of happiness. This is what Abraham Lincoln would later call the axioms of a free society.

Because all men by nature are equal and free, no manso our Founders thoughthad a right to rule another man without that man’s consent. In order for one man to rule another, the ruled would have to agree to that rule. The logical consequence of the natural equality among men is that that necessary consent should manifest itself as majority rule.

But the Founders were also aware that history showed that all previous democracies before the establishment of the American Republic were short lived, and violent in their deaths. All forms of popular government previous to ours turned into tyrannies. Whenever the people ruled directly, in their own name and in their own interests, the rights of the minority were in jeopardy. Clearly, even though the Founders maintained that the people had a right to rule, they wanted to devise a way to make that rule into a just and reasonable rule. They wanted to make as certain as possible that the rights of all would be secured under a popular or democratic regime.

Thomas Jefferson said it most clearly: "The will of the majority is in all cases to prevail, but that will, to be rightful, must be reasonable."

It is a defining feature of our American system of government that, while we claimed unambiguously the peoples’ right to rule, we the people at the same time decided to limit our own rule. Thus the people established a Constitution. The exercise of this original right, to use Chief Justice John Marshall’s words, is a very great exertion. It was an action by the people that limited their own power. The Constitutionthrough separation of powers and federalism, those two great discoveries of American political scienceis a great limiting document. The first manifestation of the people’s rightful authority was therefore an act that limited their own power. When we use the phrase, limited government, we mean Constitutional government. Why would the people limit their own power and authority?

The Constitution of the United States limits and defines the power of the people. Through various devices and methods usedseparating the executive power from the legislative and the judicial; through federalism; as well as the manner in which officials of the federal government are elected, for example only members of the House of Representatives are elected, in the original un-amended Constitution, by the people directly (U.S. Senators were chosen by state legislatures); as well as by the indirect election of the president of the United States by the Electoral Collegethe Founders hoped that the people’s will would be channeled in a certain direction.

The Constitution constructs and re-constructs, refines and enlarges, the will of the people to make as certain as possible that the will of the people would be reasonable. The Constitution is nothing less than the attempt to craft majorities that would be disinclined or unable to interfere with the rights of the minority. Once the people established the Constitution, the majorities they formed would be Constitutional majorities, not simple numerical majorities. The president of the United States takes an oath to the Constitution, not to the majority, or to the people who he may think got him elected, not even to the Electoral College, nor to anyone or anything else. Just to the Constitution.

In other words, the formation of majorities is not simply a mathematical or quantitative problem. The Constitution is concerned not with simple majority, not with the size of majorities, but with their character. It is a qualitative problem. The various majorities that are formed, both in the different branches of the government, and in the states, have a different character than would a simple national majority.

During the Constitutional Convention a plan to have the president elected directly by the people was defeated twice. It was thought that the direct election of the president would link executive power directly to the majority, and that this was dangerous because one man could claim to represent the majority, even the will of the people, too directly and try to explicitly represent in his person and in the office, the interests and the passions of the people. Those running for president would be more inclined to practice what Hamilton called "the little arts of popularity." Such men would be interested in keeping the population in a continuous state of tumult, dissatisfaction, and disorder. The people, when full of passionate intensity, would be less likely to govern according to the dictates of reflection and justice. They would be less inclined to keep the rights of the minority in mind.

The other alternative was to have the president elected by the Congress. But this would violate the principle of the separation of powers, a core principle of the Constitution. So they established the Electoral College as a compromise. The Electoral College would bolster the separation of powers because the College would meet like a temporary legislature with only one function: to elect the president. After which it would dissolve, only to re-appear four years later. This process takes place pursuant to authority constitutionally delegated to each state’s legislature: The Constitution requires state legislatures to determine how the Electors are chosen and since the 1830s, with minor exceptions, Electors have been chosen by popular vote within each state.

The opponents of the Electoral College say that it is undemocratic. It is argued, and will be argued in the coming year, that we do not elect our president democratically. This argument is incorrect. We do have a democratic election for president, but it is democratic within each state. Needless to say, this bolsters the second great principle of the Constitution, federalism.

The effects of this mode of election of our chief executive are exactly what the Framers of the Constitution wanted. Presidential candidates and the political parties that support them are forced to campaign in such a manner as to construct a Constitutional, as opposed to a popular, majority. In attempting to get a majority of the Electoral votes, candidates for the presidency are forced to think in terms of states and to campaign for the majority vote in each state. Such campaigns encourage compromise between different geographical interests. And such national, state-by-state campaigns, would more likely represent those interests that would otherwise not be represented because the states’ population is too small. The Electoral College discourages merely regional parties, and has the effect of discouraging the establishment of narrowly defined third parties. It has the effect of supporting the two-party system, which does not eliminate partisanship, but does moderate it. Both parties are forced to practice politics inclusively.

The Electoral College, by and large, gives us more rational and more moderate majorities than we would have without it. The majorities formed tend to be partisans of the Constitution, and not only partisans of their interests. And the presidents who are elected by the Electoral College, by and large, are free of petty interests, passions, and tend not to be practitioners of the little arts of popularity that the Founders warned us against (a Huey Long would find it very difficult to be elected president). The Electoral College gives us presidents who have a broader, national, view of the public good. The office of the president, as a result, is energetic, independent, yet reasonable and limited. It is a Constitutional office, that reflects the Constitutional majority of the people.

Today, you participate in a process that has continued unabated every four years since our founding. There are those who seek to disparage this institution as somehow undemocratic, but the Founders knew better. They established a system whereby the president would be elected by not a simply majority, but by a majority of the electors of the states. By doing so, they ensured that the president would be responsive not to a concentrated majority, but to the nation as a whole. Your duty is a solemn one; it is a constitutional one; and, from the perspective of this partisan of the constitution, it is a proper and democratic one.